DUE PROCESS OF LAW Due process of law is a fundamental, constitu-tional guarantee that all legal proceedings will be fair and that one will be given notice of the proceedings and an oppo
Trang 1or parents while he or she is under twenty-one years of age, or as the result of a naturalization obtained on his or her behalf while under
21 years of age by a parent, guardian, or authorized agent, unless the individual fails to enter the United States to establish a permanent residence prior to the 25th birthday
The treaty between the United States and the foreign nation determines whether the individual may maintain the dual citizenship
if he or she elects to retain the U.S citizenship,
or may lose his or her foreign citizenship and remain only a U.S citizen
DUCES TECUM [Latin, Bring with you.] Commonly called a subpoena duces tecum, a type of legal writ requiring one who has been summoned to appear in court to bring some specified item with him or her for use
or examination by the court
A person served with aSUBPOENA DUCES TECUM
might be required to present documents, such
as business records or other pieces of physical evidence, for the inspection of the court
DUE Just; proper; regular; lawful; sufficient; reasonable,
as in the phrases due care, due process of law, due notice
Owing; payable; justly owed That which one contracts to pay or perform to another; that which law or justice requires to be paid or done Owed, or owing, as distinguished from payable A debt is often said to be due from a person where he or she is the party owing it, or primarily bound to pay, whether the time for payment has or has not arrived The same thing is true of the phrase due and owing
The term due is essentially contextual in nature and has various legal applications, all of which involve the sufficiency or reasonableness
of an action or obligation
Due care is the use of the requisite amount
of caution needed in a particular set of circum-stances based upon what a reasonably prudent person would do under similar circumstances
Exercising due care while driving might mean obeying traffic regulations
Due consideration is the proper weight or significance given to a matter or a factor as circumstances mandate It may also have app-lication in sufficiency of consideration in the law of contracts
DUE DATE The particular day on or before which something must be done to comply with law or contractual obligation
DUE NOTICE Information that must be given or made available
to a particular person or to the public within a legally mandated period of time so that its recipient will have the opportunity to respond to a situation
or to allegations that affect the individual’s or public’s legal rights or duties
Due notice is not a fixed period of time in every instance but varies from case to case, depending upon the facts and the applicable statutory requirements In some situations, it might be a specified time; in others, it might
be considered a REASONABLE TIME, thereby pre-senting a QUESTION OF FACT in a lawsuit to determine if timely notice has been given
DUE PROCESS OF LAW Due process of law is a fundamental, constitu-tional guarantee that all legal proceedings will
be fair and that one will be given notice of the proceedings and an opportunity to be heard before the government acts to take away one’s life, liberty, or property Also, a constitutional guaran-tee that a law shall not be unreasonable, arbitrary,
or capricious
The constitutional guarantee of due process
of law, found in the Fifth and Fourteenth Amendments to the U.S Constitution, prohi-bits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and pro-perty The due process clause of the FIFTH AMENDMENT, ratified in 1791, asserts that no person shall “be deprived of life, liberty, or property, without due process of law.” This amendment restricts the powers of the federal government and applies only to actions by it The due process clause of the FOURTEENTH AMENDMENT, ratified in 1868, declares, “[N]or shall any State deprive any person of life, liberty,
or property, without due process of law” (§ 1) This clause limits the powers of the states, rather than those of the federal government The due process clause of the Fourteenth Amendment has also been interpreted by the U.S Supreme Court in the twentieth century to incorporate protections of the BILL OF RIGHTS,
Trang 2so that those protections apply to the states as
well as to the federal government Thus, the
due process clause serves as the means whereby
the Bill of Rights has become binding on
state governments as well as on the federal
government
The concept of due process originated in
EnglishCOMMON LAW The rule that individuals
shall not be deprived of life, liberty, or property
without notice and an opportunity to defend
themselves predates written constitutions and
was widely accepted in England The Magna
Carta, an agreement signed in 1215 that defined
the rights of English subjects against the king, is
an early example of a constitutional guarantee
of due process That document includes a clause
that declares,“No free man shall be seized, or
imprisoned… except by the lawful judgment of
his peers, or by the law of the land” (ch 39)
The phrase law of the land was later renamed
due process of law By the seventeenth century,
England’s North American colonies were
using the phrase “due process of law” in their
statutes
The application of constitutional due process
is traditionally divided into the two categories
of SUBSTANTIVE DUE PROCESS and procedural due
process These categories are derived from a
distinction that is made between two types of
law.SUBSTANTIVE LAWcreates, defines, and regulates
rights, whereas PROCEDURAL LAW enforces those
rights or seeks redress for their violation Thus, in
the United States, substantive due process is
concerned with such issues asFREEDOM OF SPEECH
and privacy, whereas procedural due process is
concerned with provisions such as the right to
adequate notice of a lawsuit, the right to be
present during testimony, and the right to
an attorney
Substantive Due Process
The modern notion of substantive due process
emerged in decisions of the U.S Supreme Court
during the late nineteenth century In the 1897
case of Allgeyer v Louisiana, 165 U.S 578, 17 S
Ct 427, 41 L Ed 832, the Court for the first
time used the substantive due process
frame-work to strike down a state statute Before that
time, the Court generally had used theCOMMERCE
CLAUSEor the contracts clause of the Constitution
to invalidate state legislation The Allgeyer case
concerned a Louisiana law that proscribed the
entry into certain contracts with insurance firms
in other states The Court found that the law
unfairly abridged the right to enter into lawful contracts, as guaranteed by the due process clause of the Fourteenth Amendment
The next 40 years after Allgeyer were the heyday of what has been called the freedom-of-contract version of substantive due process
During those years, the Court often used the due process clause of the Fourteenth Amendment to void state regulation of private industry, parti-cularly regarding terms of employment such as maximum working hours or minimum wages
In one famous case from that era, Lochner v
New York, 198 U.S 45, 25 S Ct 539, 49 L Ed
937 (1905), the Court struck down a New York law (N.Y Laws 1897, chapter 415, article 8, section 110) that prohibited employers from allowing workers in bakeries to be on the job more than ten hours per day and 60 hours per week The Court found that the law was not a valid exercise of the state’s POLICE POWER It wrote that it could find no connection between the number of hours worked and the quality
of the baked goods, thus finding that the law was arbitrary
In Allgeyer and Lochner and in other cases like them, the Court did not find that state legislatures had failed to enact their laws using the proper procedures, which would present
an issue of procedural due process Instead, it found that the laws themselves violated certain economic freedoms that inhered in the due process clause, specifically its protection of
A crowd demonstrates before a federal courthouse in Seattle, Washington, prior to
a hearing in which five detainees of the Immigration and Naturalization Service claimed that indefinite detention violates the constitutional guarantee of due process.
AP IMAGES
Trang 3liberty and what the Court described as freedom
or liberty of contract This freedom meant that individuals had the right to purchase or to sell labor or products without unreasonable interference by the government
This interpretation of the due process clause put the Court in direct opposition to many of the reforms and regulations passed by state legisla-tures during the Progressive Era of the early twentieth century Justices who were opposed to the Court’s position in such cases, including Oliver Wendell Holmes Jr and JOHN M.HARLAN, saw such rulings as unwarranted judicial activism
in support of a particular free-market ideology
During the 1930s the Court used the doctrine of substantive due process to strike down federal legislation as well, particularly legislation associated with then-president Franklin
D Roosevelt’s NEW DEAL In 1937 Roosevelt proposed a court-packing scheme in which Roosevelt sought to overcome Court opposition
to his programs by appointing additional justices Although the plan was never adopted, the Court quickly changed its position on substantive due process and other issues and began to uphold New Deal legislation At that time, a majority on the Court, including Chief Justice Charles E Hughes and JusticeBENJAMIN N
CARDOZO, abandoned the freedom-of-contract version of substantive due process
Even before the Court abandoned the freedom-of-contract approach to substantive due process, it began to explore using the due process clause of the Fourteenth Amendment
to re-evaluate state laws and actions affecting civil freedoms protected by the Bill of Rights
Since the 1833 case of Barron v Baltimore,
32 U.S (7 Pet.) 243, 8 L Ed 672, the Court had interpreted the Bill of Rights as applying only
to the federal government Beginning in the 1920s, however, it began to apply the Bill of Rights to the states through the incorporation
of those rights into the due process clause of the Fourteenth Amendment In Gitlow v New York,
268 U.S 652, 45 S Ct 625, 69 L Ed 1138 (1925), the Court ruled that the liberty guaran-tee of the Fourguaran-teenth Amendment’s due process clause protects FIRST AMENDMENT free speech from STATE ACTION In Near v Minnesota, 283 U.S 697, 51 S Ct 625, 75 L Ed 1357 (1931), the Court found that FREEDOM OF THE PRESSwas also protected from state action by the due process clause, and it ruled the same with regard
to freedom ofRELIGION in Cantwell v Connecti-cut, 310 U.S 296, 60 S Ct 900, 84 L Ed 1213 (1940)
Because incorporation has proceeded grad-ually, with some elements of the Bill of Rights still unincorporated, it has also been called selective incorporation Nevertheless, during the twentieth century, most of the provisions of the Bill of Rights were incorporated by the due process clause of the Fourteenth Amend-ment, thereby protecting individuals from arbitrary actions by state as well as federal governments
By the 1960s the Court had extended its interpretation of substantive due process to include rights and freedoms that are not spe-cifically mentioned in the Constitution but that, according to the Court, extend or derive from existing rights These rights and freedoms include the freedoms of association and non-association, which have been inferred from the First Amendment’s freedom-of-speech provi-sion, and the right to privacy The right to privacy, which has been derived from the First, Fourth, and Ninth Amendments, has been an especially controversial aspect of substantive due process First established in Griswold v Connecticut, 381 U.S 479, 85 S Ct 1678, 14
L Ed 2d 510 (1965), the Court later used it to protect a woman’s decision to have anABORTION
free from state interference, in the first trimester
of pregnancy (Roe v Wade, 410 U.S 113, 93
S Ct 705, 35 L Ed 2d 147[1973])
In several recent decisions, the U.S Supreme Court has considered the application
of substantive due process in light of actions taken by law enforcement officers It often has determined that police actions have not violated
a defendant’s due process rights In County of Sacramento v Lewis, 523 U.S 833, 118 S Ct
1708, 140 L Ed 2d 1043 (1998), for example, the Court determined that high-speed chases
by police officers did not violate the due process rights of the suspects whom the officers were chasing In that case, two police officers had engaged in a pursuit of two young suspects at speeds of more than 100 miles per hour through
a residential neighborhood One of the young men died, while the other suffered serious injuries A unanimous Court held that the officers’ decision to engage in the pursuit had not amounted to “governmental arbitrariness” that the due process clause protects due to the
Trang 4nature of the judgment used by the officers
in such a circumstance
Lower federal courts have applied an
increas-ingly narrow interpretation of substantive due
process rights, which they say include only
fundamental rights, such as the rights to marry,
to have children, to direct the education and
upbringing of children, to marital privacy, to
the use of contraception, to bodily integrity, and
to abortion These courts have been
extre-mely reluctant to recognize any new due process
rights not already recognized by the U.S
Supreme Court For example, one federal court
ruled that the right to enter a public park is not
a right protected by the due process clause, and
thus a city could lawfully exclude a former sex
offender from visiting a municipal park after
the former offender was observed using
bino-culars to spy on other park patrons (Brown v
City of Michigan City, Indiana, 462 F.3d 720
[7th Cir 2006])
Procedural Due Process
A fundamental principle of procedural due
process is that notice be given to persons when
legal action is initiated against them so that they
may have the opportunity to defend themselves
in court Procedural due process is a concept
that applies in civil proceedings, criminal
pro-ceedings, and any other proceeding in which a
person may be deprived of life, liberty, or
pro-perty Procedural due process limits the exercise of
power by the state and federal governments by
requiring that they follow certain procedures
before taking adverse legal action against
some-one In cases where an individual has claimed
a violation of due process rights, courts must
determine whether the citizen is being deprived of
“life, liberty, or property,” and what procedural
protections are“due” to that individual
The Bill of Rights contains provisions that
are central to procedural due process These
protections give a person a number of rights
and freedoms in criminal proceedings,
includ-ing freedom from unreasonable searches and
seizures; freedom from DOUBLE JEOPARDY, or
being tried more than once for the same crime;
freedom from SELF-INCRIMINATION, or testifying
against oneself; the right to a speedy and public
trial by an impartial jury; the right to be told
of the crime being charged; the right to
cross-examine witnesses; the right to be represented
by an attorney; freedom from CRUEL AND
UNUSUAL PUNISHMENT; and the right to demand
that the state prove any charges BEYOND A REASONABLE DOUBT In a series of U.S Supreme Court cases during the twentieth century, all of these rights were applied to state proceedings
In one such case, Gideon v Wainwright, 372 U.S 335, 83 S Ct 792, 9 L Ed 2d 799 (1963), the Court ruled that the due process clause of the Fourteenth Amendment incorporates the
SIXTH AMENDMENT right to have an attorney in
“all criminal prosecutions,” including prosecu-tions by a state The case proved to be a watershed in establishing indigents’ rights to legal counsel
The U.S Supreme Court is more likely to find due process violations where the actions of
a government official are clearly arbitrary In City of Chicago v Morales, 527 U.S 41, 119 S
Ct 1849, 144 L Ed 2d 67 (1999), for example, the Court struck down a Chicago anti-gang ordinance as unconstitutional on due process grounds The ordinance allowed police officers
to break up any group of two or more persons whom they believed to be loitering in a public place, provided that the officer also believed that at least one member of the group was a gang member The ordinance had led to more than 43,000 arrests Because the ordinance did not draw the line between innocent and guilty behavior and failed to give guidance to police
on the matter, the ordinance violated the due process rights of the subjects of these break-ups
The Court held that because the ordinance gave absolute discretion to the police officers to determine what actions violated the ordinance,
it was an arbitrary restriction on personal liberty
in violation of the due process clause
In 2002 the Court found that arbitrary actions by a trial judge in aMURDERcase violated the due process rights of the DEFENDANT (Lee v
Kemna, 534 U.S 362, 122 S Ct 877, 151 L Ed
820 [2002]) In that case, the defendant was charged with first-degree murder for driving the getaway car for a man who had pleaded guilty
to a murder charge in Kansas City, Missouri
The defendant claimed that he had been in California at the time of the murder, and four family members were to testify at trial that the defendant was not in Kansas City at the time
of the murder However, the family members left before they were expected to testify, and the defense could not locate them The defense asked the court for a short continuance of one
or two days, but the judge refused due to personal conflicts and a conflict with another
Trang 5trial Without the testimony of the family mem-bers, the defendant was convicted of murder The high court held that the judge’s arbitrary actions violated the defendant’s due process rights, and it vacated the defendant’s conviction
Procedural due process also protects indivi-duals from government actions in the civil,
as opposed to criminal, sphere The bedrock principle of procedural due process in civil cases
is the concept of notice Unlike criminal cases in which an individual’s liberty is at stake, plaintiffs
in civil cases bring legal actions to recover money
or property from another person, and the law guarantees that individuals be notified before this happens Hand-delivered personal notice
is the preferred method of providing notice of
a pending legal proceeding, but oftentimes hand-delivery is not possible Courts then wrestle with what type of notice will satisfy due process requirements
In Jones v Flowers, 547 U.S 220, 126 S Ct
1708, 164 L Ed 2d 415 (2006), the U.S Supreme Court ruled that a state must do more than serve
a tax forfeiture sale notice by certified mail when the certified letters are returned as unclaimed
The Court held that a state must take“additional reasonable steps” to provide homeowners with notice before taking their homes and selling them These steps include posting notice on a homeowner’s door and addressing mailings to
“occupant.” However, the Court cautioned that homeowners are not entitled to receive actual, hand-delivered notice, so long as reasonable steps have been taken to give notice
Lack of notice also played a key role in Philip Morris USA v Williams, 549 U.S 346, 127
S Ct 1057, 166 L Ed 2d 940 (2007), where the Supreme Court ruled that the due process clause prohibits juries from imposing PUNITIVE DAMAGES on a defendant for injuries that the defendant caused to persons who are not part
of a plaintiff’s lawsuit, even if those persons were in fact injured by the defendant and injured in a substantially similar way In a 5–4 decision written by Justice STEPHEN BREYER, the Court said that due process does not permit a defendant to be punished for harm inflicted upon “strangers to the litigation,” because defendants would lack sufficient notice to defend themselves against claims not specifically raised by the pleadings, and this would intro-duce an unacceptable amount of uncertainty into civil litigation
Procedural due process protections have been extended to include not only land and
PERSONAL PROPERTY, but also entitlements, includ-ing government-provided benefits, licenses, and positions Thus, for example, the Court has ruled that the federal government must hold hearings before terminating welfare benefits (Goldberg v Kelly, 397 U.S 254, 90 S Ct
1011, 25 L Ed 2d 287[1970]) Court decisions regarding procedural due process have exerted a great deal of influence over government proce-dures in prisons, schools, SOCIAL SECURITY, civil suits, and public employment
The U.S Supreme Court in Lujan v G&G Firesprinklers, Inc., 532 U.S 189, 121 S Ct 1446,
149 L Ed 2d 391 (2000), held that a state is not required to hold a hearing before withholding money and imposing penalties on a building contractor The California Division of Labor and Standards Enforcement determined that a building subcontractor had failed to pay the prevailing wage to workers who installed fire sprinklers in state buildings The California agency, without providing notice or a hearing, fined the general contractor, which in turn withheld money from the subcontractor The subcontractor, G&G Firesprinklers, sued the California agency, claiming that the agency had violated the company’s procedural due process rights The Court disagreed, holding that because the company could sue the agency for breach of contract, the fine did not constitute
a due process violation
FURTHER READINGS Cassel, Douglass W., Jr 2003 “Detention Without Due Process ” Chicago Daily Law Bulletin 149 (March 13) Gedicks, Frederick Mark 2009 “An Originalist Defense of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, and the Fifth Amendment ” Emory Law Journal 58.
Israel, Jerold H 2001 “Free-standing Due Process and Criminal Procedure: The Supreme Court ’s Search for Interpretive Guidelines.” St Louis University Law Journal 45 (spring).
Pennock, J Roland, and John W Chapman 1977 Due Process New York: New York Univ Press.
Wells, Michael L 2009 “State-Created Property and Due Process of Law: Filling the Void Left by Enguist v Oregon Department of Agriculture ” Georgia Law Review (Fall).
CROSS REFERENCES Criminal Procedure; Fifth Amendment; Incorporation Doctrine; Judicial Review; Labor Law; Right to Counsel; Substantive Due Process.
Trang 6The fighting of two persons, one against the other,
at an appointed time and place, due to an earlier
quarrel If death results, the crime is murder It
differs from an affray in this, that the latter occurs
on a sudden quarrel, while the former is always
the result of design
In dueling, the use of guns, swords (rapiers),
or other harmful weapons resolves quarrels
through trial by combat Duels used to occur
commonly between opposing individuals
seek-ing restitution or satisfaction outside the court
system In early U.S history, some members of
law enforcement attempted to treat dueling as a
crime, but the practice went mostly
unpun-ished However, with the results of one duel
especially—betweenAARON BURR and Alexander
Hamilton—the practice lost prestige in the
northern states Along with growing public
sentiment against dueling, new laws in the
mid-1800s finally treated the form of confrontation
as outright or attemptedHOMICIDE In states that
have not incorporated dueling into their
homi-cide statutes, dueling is now a crime punishable
by a fine or imprisonment, or both It is also
an offense in some states merely to give or
accept a challenge to engage in a duel
Around the time of the Revolutionary War,
dueling occurred in every state of the nation—
in some areas, regularly—for even relatively
slight offenses, such as insults, or to resolve
gambling disputes Few laws prohibited this
tradition inherited from the Old World, which
continued to evolve, even in Europe Although
no binding set of rules governed the proceedings
of a duel in the United States—largely, no doubt,
because dueling was outside the law—U.S
citizens adopted the European rules from their
ancestors
U.S citizens based their dueling codes on
the Code Duello of Ireland This Irish code
of 1777 contained twenty-six commandments
covering all aspects of a duel It included ways
to avert a duel, such as the manner in which
to apologize when one had committed a
duel-provoking offense If a duel could not be
avoided, the scenario was a familiar one: usually,
opponents would stand back-to-back, then pace
a set number of steps away from each other,
turn, and shoot The Code Duello declared,“The
aggressor must either beg pardon in expressed
terms… or fire on until a severe hit is received
by one party or the other.” In the United States,
less strict variations of the Code Duello allowed
the contest to end without bodily injury, providing for some form of public mockery for the contestant who sought to end the duel
Sometimes, U.S politicians made dueling
a sensational event Critics, such as THOMAS JEFFERSON andTHOMAS PAINE, wanted to make the practice punishable by law with the death penalty But others insisted on resorting to duels
in order to uphold their political reputation
Perhaps the most famous duel in U.S history was fought in 1804 between the Federalist leader
ALEXANDER HAMILTONand New England politician Aaron Burr The two had confronted and spoken harshly to each other for several years, beginning in 1791 Hamilton became furious with Burr during Burr’s unsuccessful campaign for a New York senate seat in 1792 He claimed that Burr had used dirty politics, and ridiculed Burr as “unprincipled and dangerous,” casting him as a power-hungry “embryo Caesar.”
When Burr aspired to become president in the
1800 election, Hamilton voted for Thomas Jefferson—an opponent of his own Federalist party—just for the principle of voting against Burr Burr settled for the vice presidency, and held a grudge for Hamilton’s disparaging treatment
After serving as vice president, Burr chal-lenged Hamilton to a duel Hamilton knew that Burr was a much better sharpshooter than himself, but because of unwritten codes of honor that pressured him not to back out of
A depiction of the duel between Alexander Hamilton and Aaron Burr on July 11, 1804 Hamilton intentionally missed Burr, but Burr’s shot wounded Hamilton, who died the next day.
LIBRARY OF CONGRESS
Trang 7a duel, he accepted Burr’s challenge On July 11, the two and their seconds (seconds who would take the place of their principal if he could not show) met at the predetermined site of Weehawken, New Jersey, overlooking the Hud-son River (Though both men lived in New York, New Jersey had fewer legal restrictions on dueling than did New York.) Major Nathaniel Pendleton, one of Hamilton’s friends, recited the accepted rules of dueling before the firing
of shots After both parties said they were ready for the duel, by declaring themselves present, their final confrontation began When Pendle-ton shouted, “Fire,” Burr pulled his trigger first The bullet hit Hamilton in his side and pierced his liver Burr was unharmed About thirty-six hours later, Hamilton died from his wound
Even though Burr had killed an elder and respected political leader, neither New Jersey nor New York issued a warrant for his arrest
New York, ignoring the case ofMURDER, pressed misdemeanor charges for breaking the state’s minor restrictions on duels New Jersey charged Burr with murder, but the case never went to trial The only punishment Burr received was a public outcry against him
Attempting to hide himself from Hamilton’s supporters, Burr spent the rest of his life in seclusion and poverty
Some, especially those in the North who were upset with the loss of Hamilton, began to cast the practice of dueling as barbaric and absurd Drastic legislation in Pennsylvania and several New England states, including New York, followed Farther west, the new state of Illinois,
in 1819, hung a man for killing a neighbor in
a rifle duel at the range of twenty-five paces
Most states, however, still did not have laws against dueling
Dueling continued, especially in the South, where notions of individual honor remained deep In 1838, Governor John Lyde Wilson, of South Carolina, wrote the first official U.S
adaptation of the Irish Code Duello As an innovation on the Irish code, Wilson’s Code Duello formalized the U.S principle that required satisfaction to follow a confrontation:
if a person challenged to a duel, or that person’s second, refused to raise arms, public insults would follow, such as postings on walls declaring the individual a coward, a poltroon, a puppy, or worse Although Wilson did not proclaim
enthusiastic support of duels, he did believe that in certain instances, they were necessary and proper; dueling, he felt, served as a logical recourse for any individual seeking satisfaction
in a case where the law could not provide it Wilson’s sixteen-page pamphlet remained pop-ular and was reprinted until 1858
After a fatal duel between two legislators, Jonathan Cilley and William J Graves, Congress passed an anti-dueling law HENRY CLAY, of Kentucky, an opponent of duels, made his support of the bill known by explaining,“When public opinion is renovated and chastened by reason, RELIGION and humanity, the practice of dueling will be discountenanced.” The bill banned dueling in the District of Columbia beginning on February 20, 1839 In the next decades, various states followed Congress’s lead Members of the clergy and concerned politi-cians continued to give impassioned speeches further criticizing the“peculiar practice.” Although dueling persisted into the early 1800s, and reached its height during that period, by the middle of the century it had largely disappeared Historians attribute the decline to an increase in the number of laws banning it, and in the penalties for dueling These laws reflected a change in attitude toward the practice, which came to be viewed as barbarous, rather than honorable The Code Duello’s unyielding, Old World conception of honor was discredited by younger generations Outlawed and outmoded, dueling remains an interesting chapter in the history of dispute resolution in the United States
FURTHER READINGS Baldick, Robert 1970 The Duel: A History of Duelling London: Chapman & Hall.
Billacois, Francois 1990 The Duel: Its Rise and Fall in Early Modern France Trista Selous, trans New Haven, Conn.: Yale Univ Press.
Burr, Samuel Engle, Jr 1971 The Burr-Hamilton Duel and Related Matters San Antonio: Naylor.
Cochran, Hamilton 1963 Noted American Duels and Hostile Encounters Philadelphia and New York: Chilton Books Hussey, Jeannette 1980 The Code Duello in America Washington, D.C.: Smithsonian Institution.
Kiernan, V.G 1989 The Duel in European History New York: Oxford Univ Press.
McAleer, Kevin 1994 Dueling Princeton, N.J.: Princeton Univ Press.
Parker, David S 2001 “Law, honor, and Impunity in Spanish America: The Debate Over Dueling, 1870–
1920 ” Law and History Review 19 (summer) Rush, Philip 1964 The Book of Duels London: Harrp.
Trang 8Spierenburg, Pieter, ed 1998 Men and Violence: Gender,
Honor, and Rituals in Modern Europe and America.
Columbus: Ohio State Univ Press Available at http://
www.ohiostatepress.org/index.htm?/books/book%
20pages/spierenburg%20men.htm; website home page:
http://www.ohiostatepress.org (accessed July 20, 2009).
Yarn, Douglas H 2000 “The Attorney as Duelist’s Friend:
Lessons from the Code Duello.” Case Western Reserve
Law Review 51 (fall) Available online at http://www.
law.case.edu/student_life/journals/law_review/51-1/
Yarn.htm; website home page: http://www.law.case.edu
(accessed July 20, 2009).
DUI
SeeDWI
vDULLES, JOHN FOSTER
John Foster Dulles served as U.S secretary of
state from 1953 to 1959 A prominent New York
City attorney, Dulles participated in international
affairs for much of his legal career His term
as secretary of state occurred during the height
of theCOLD WARand was marked by his strong
anti-Communist policies and rhetoric
Dulles was born in Washington, D.C., on
February 25, 1888, at the home of his maternal
grandfather, John W Foster, secretary of state
under President BENJAMIN HARRISON Dulles was
raised in Watertown, New York, where his
father, the Reverend Allen M Dulles, served as
a Presbyterian minister Known as Foster, the
young Dulles was a precocious student,
gra-duating from high school at age 15 and
attending Princeton University at age 16 He
graduated in 1908 and then entered GEORGE
WASHINGTON University Law School Again, he
worked quickly, and graduated in two years
Through the efforts of his well-connected
grandfather, Dulles joined the New York City
law firm of Sullivan and Cromwell, which has
been called the greatest corporate law firm
of the early twentieth century In 1919 family friend and international financier Bernard M
Baruch invited Dulles to be his aide at the Paris Peace Conference This conference, which was convened to negotiate the terms
of peace to end WORLD WAR I, stimulated Dulles’s interest in international politics and diplomacy
In the 1920s Dulles quickly moved ahead
at Sullivan and Cromwell In 1926, at the age of only 38, Dulles was made head of the firm Representing many of the largest U.S corporations, Dulles became a very wealthy man As his stature rose, he became a prominent figure in the REPUBLICAN PARTY A confidant of New York governorTHOMAS E.DEWEY, Dulles was
John Foster Dulles 1888–1959
1888 Born, Washington, D.C.
1911 Joined Sullivan &
Cromwell in New York City
1924 Served as special counsel to Dawes Plan, which renegotiated Germany's post-war finances and reparations payments
1939 War, Peace and
Change published
1945–49 Served as U.S member of U.N General Assembly
1914–18 World War I
1959 Died, Washington, D.C.
◆
1951 Helped arbitrate peace terms with Japan
1939–45 World War II
1952–59 Served as U.S secretary of state under President Eisenhower
1950–53 Korean War
1961–73 Vietnam War
1900
◆
1919 Served as counsel to U.S representative at the Paris Peace Conference
❖
John F Dulles COURTESY OF JOHN FOSTER DULLES
THE ABILITY TO GET
TO THE VERGE OF WAR WITHOUT GETTING INTO THE WAR IS THE NECESSARY ART…IF YOU ARE SCARED TO
GO TO THE BRINK,
YOU ARE LOST
—J OHN D ULLES
Trang 9promised the position of secretary of state
if Dewey was elected president in 1948, but Dewey was unsuccessful and Dulles lost that opportunity
Dulles was an active participant in the effort to reshape foreign relations afterWORLD WAR II He helped form theUNITED NATIONSand was a U.S member to the General Assembly from 1945 to 1949 He performed the duties of U.S ambassador-at-large and was the chief author of the 1951 Japanese peace treaty He also negotiated the Australian, New Zealand, Philippine, and Japanese security treaties in
1950 and 1951
In 1949 he filled a vacancy in the Senate created by the death of SenatorROBERT WAGNER,
of New York, but was unsuccessful in his attempt the same year to win election to a six-year term Dulles’s political fortunes im proved when he aligned himself with the 1952 presi-dential candidacy ofDWIGHT D EISENHOWER He helped Eisenhower defeat conservative senator Robert Taft, of Ohio, at the nominating conven-tion and was rewarded with his long-desired appointment as head of theSTATE DEPARTMENT
As secretary of state, Dulles exhibited a rigid opposition to COMMUNISM He advocated going
to the brink of war to achieve results—a position that led to the coinage of the term brinkmanship
to describe his foreign policy
Dulles is also remembered for his doctrine
of “massive retaliation,” which warned the Soviet Union that the United States would react instantaneously with NUCLEAR WEAPONS to even the smallest provocation Dulles believed that such a policy would discourage aggressive acts, though many allies were concerned that it would turn small wars into much larger and much more destructive ones Dulles died May
24, 1959, in Washington, D.C
FURTHER READINGS Halberstam, David 1994 The Fifties New York: Ballantine.
Merry, Robert W 1996 Taking on the World: Joseph and Stewart Alsop, Guardians of the American Century New York: Viking.
The Papers of John Foster Dulles.The Dwight D Eisenhower Presidential Library and Museum Abilene, Tex Avaial-ble online at http://eisenhower.archives.gov/Research/
Finding_Aids/D.html; website home page: http://eisen-hower.archives.gov (accessed September 2, 2009).
CROSS REFERENCE Cold War.
DUMMY Sham; make-believe; pretended; imitation Person who serves in place of another, or who serves until the proper person is named or available to take his place (e.g., dummy corporate directors; dummy owners of real estate)
DURESS Unlawful pressure exerted upon a person to coerce that person to perform an act that he or she ordinarily would not perform
Duress also encompasses the same harm, threats, or restraint exercised upon the affected individual’s spouse, child, or parent
Duress is distinguishable fromUNDUE INFLU-ENCE, a concept employed in the law of wills, in that the latter term involves a wrongdoer who
is a fiduciary, one who occupies a position of trust and confidence in regard to the testator, the creator of the will
Duress also exists where a person is coerced
by the wrongful conduct or threat of another
to enter into a contract under circumstances that deprive the individual of his or her volition
As a defense to a CIVIL ACTION, the federal Rules of CIVIL PROCEDURE require that duress
be pleaded affirmatively
Except with respect to HOMICIDE, a person who is compelled to commit a crime by an unlawful threat from another person to injure him, her, or a third person, will generally not
be held responsible for its commission
CROSS REFERENCE Threats.
DURHAM RULE
A principle of criminal law used to determine the validity of the insanity defense asserted by an accused, that he or she was insane at the time of committing a crime and therefore should not be held legally responsible for the action
The Durham rule was created in 1954 by Judge David L Bazelon, of the U.S Court of Appeals for the District of Columbia, in Durham v United States, 214 F.2d 862 The rule, as stated in the court’s decision, held that
“an accused is not criminally responsible if his unlawful act was the product of mental disease.” It required a jury’s determination that the accused was suffering from a mental disease and that there was a causal relationship between
Trang 10the disease and the act Because of difficulties
in its implementation, the Durham rule was
rejected by the same court in the 1972 case
United States v Brawner, 471 F.2d 969 (en banc)
The Durham rule replaced a
nineteenth-century test of criminal responsibility called the
M’Naghten rule The M’Naghten rule, or
“right-wrong” test, required the acquittal of defendants
who could not distinguish right from wrong
This rule was supplemented by the“irresistible
impulse” test, added in the District of Columbia
in 1929, which allowed a jury to inquire as to
whether the accused suffered from a“diseased
mental condition” that did not allow him or her
to resist an“insane impulse.”
By the mid–twentieth century, these early
legal tests of insanity came under increasing
criticism Critics of the M’Naghten rule, for
example, charged that it was outdated and did
not take into consideration the broad range of
mental disorders that had been identified by
modern science Commentators also claimed
that these earlier rules did not allow expert
witnesses to communicate fully the findings of
modern psychology and psychiatry to a jury
The Durham rule sought to overcome these
problems It attempted to create a simple and
open-ended insanity test that would, Judge
Bazelon later wrote, “open up the courtroom
to all the information and analysis available to
the scientific community about the wellsprings
of human behavior.” Bazelon hoped that the
new rule would allow experts to bring to the jury
and the public new insights into “the
physio-logical and cultural, as well as individual
psychological, factors contributing to criminal
behavior.” Bazelon intended it to be not a
precise test but rather a loose concept
compa-rable to the legal definition ofNEGLIGENCE Thus,
he compared the term fault in the negligence
context to the term responsibility in the Durham
context The meaning of such terms, he argued,
would have to be determined by a jury in light
of the facts relevant to each case
Implementation of the Durham rule ran
into serious difficulties The rule did not elicit
the detailed courtroom discussion of mental
illness and criminal behavior that Judge Bazelon
and others had hoped for Instead, just as expert
witnesses had before been asked the yes-or-no
question, Was the accused capable of
distin-guishing right from wrong? experts were now
asked the simple yes-or-no question, Was the
accused’s act a product of mental disease or defect? The Durham rule, therefore, perpetuated the dominant role of EXPERT TESTIMONY in determining criminal responsibility, a task that many critics felt was best left to a jury
As a result of such difficulties, the District of Columbia Circuit unanimously rejected the Durham rule in the 1972 Brawner case The court replaced it with a standard developed by the American Law Institute: “A person is not responsible for criminal conduct if at the time
of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law”
(MODEL PENAL CODE§ 4.01[1])
This new test has been described as a more subtle and less restrictive version of the pre-Durham right-wrong and IRRESISTIBLE IMPULSE
tests In coming to its conclusion, however, the court in Brawner emphasized that no particular formulation of words provides an easy solution
to the difficult problems involved in assessing the sanity of a person accused of committing a criminal act Instead, the court asserted that criminal responsibility in such trials is best assessed by a properly informed jury that is not overly dominated by expert testimony To help juries make such assessments, the court re-quired experts to explain the underlying reasons for their opinions rather than giving yes-or-no answers to simplistic questions
DUTY
A legal obligation that entails mandatory conduct
or performance With respect to the laws relating
to customs duties, a tax owed to the government for the import or export of goods
A fiduciary, such as an executor or trustee, who occupies a position of confidence in relation
to a third person, owes such person a duty to render services, provide care, or perform certain acts on his or her behalf
In the context ofNEGLIGENCEcases, a person has a duty to comport himself or herself in a particular manner with respect to another person
DUTY OF TONNAGE
A fee that encompasses all taxes and customs duties, regardless of their name or form, imposed upon a vessel as an instrument of commerce for entering, remaining in, or exiting from a port